“Beautiful Blue Eyes” is a newly-released film that follows a police officer in New York who believes he has found the Nazi responsible for killing his family during World War II and wants to seek revenge. It is an emotional film which is designed to provide a glimpse into how Holocaust survivors cope with their family members’ deaths and how the Holocaust has a lasting impact. The film was scheduled for release in September of 2022 on 431 screens—which was “unprecedented for an independent film,” and planned for the majority of its advertising to be run on Meta’s platforms before and after its release date. However, Meta blocked advertising of the film and its accompanying song on its platforms, stating that the advertising “didn’t comply with our advertising policies or other standards” and initiating a permanent ban on the producers’ advertising.
Subsequently, the producers of Beautiful Blue Eyes have recently filed suit against Meta, arguing that the company’s actions negatively affected box office sales and will affect global ancillary sales negatively as well. Even more importantly, they allege that the decision to ban the advertisements from Facebook stems from Meta’s “long-standing anti-Semitic policies.” The producers noted in their complaint that there is currently an upward trend of anti-Semitism and racism in the country, with “a 34 per cent rise from the year before … [which] averages out to more than seven anti-Semitic incidents per day.”
This suit will turn on Facebook’s policy toward hate speech, which was the rationale that the company used for banning the advertisements. Within the policy, hate speech is defined as “a direct attack against people … on the basis of what we call protected characteristics.” Beautiful Blue Eyes producers argue that the film is certainly not an attack on a class of people but rather it is a story of a Holocaust survivor. Following publication within the RollingStone magazine concerning the ban and public outcry, the ban on Beautiful Blue Eyes advertising was later overturned by Meta. The producers argue that Facebook failed to properly review the film the first time due to its anti-Semitic policies and had there not been public outcry, the decision would never have been reversed.
Even though the ban was ultimately lifted, the damage that had already been done to the film was staggering. Most of the advertising for the film was slated to air on Facebook and Instagram prior to the release so when it did not, the success that was anticipated diminished considerably. After one week, the 431 theaters that were originally showing the film dropped to only 5.
The producers have alleged several causes of action including breach of contract and intentional infliction of emotional distress. They argue that under Facebook’s community standards, the film does not constitute hate speech and therefore, Meta “breached its obligations pursuant to the Terms of Service contract” by banning the film’s advertisements. Additionally, Meta caused emotional distress when it designated their film as hate speech. They also allege that Meta’s banning their film, specifically as it is about the Holocaust, was done with anti-Semitic intent and caused additional emotional distress.
The issue of antisemitism intersecting with social media that is displayed in this suit is unfortunately nothing new.
The issue of antisemitism intersecting with social media that is displayed in this suit is unfortunately nothing new. According to the Center for Countering Digital Hate, “84% of antisemitic posts are not acted on by social media companies.” In fact, this past July, the 10th Circuit ruled in favor of a high school student that posted anti-Semitic content on Snapchat, stating that his conduct “was not disruptive enough to justify his expulsion, and revived his lawsuit accusing the school district of violating his free-speech rights.” Courts have hesitated to clearly define what constitutes free speech on social media thus far, which may be helping anti-Semitism to continue making its way onto various platforms.
The Beautiful Blue Eyes case certainly poses a conundrum for the Court. On one hand, content that promotes anti-Semitic sentiments is “protected” according to the 10th Circuit. On the other hand, Meta is arguing that advertising about a movie that centers on the Holocaust is “hate speech” and is not protected. Surely it cannot be said that anti-Semitic statements are protected, while advertising about the Holocaust is not. Further, if the Court finds that Meta engaged in anti-Semitic policies in evaluating the producers’ claims, this would be an important turning point. As an independent film with a small advertising budget, a case like this shows how pertinent topics such as the Holocaust can be overshadowed and left in the dark when social media platforms ban advertising about them. While we know that courts have struggled to establish definitive guidelines when interpreting free speech and social media posts, instead leaving the issue quite murky, this case provides an opportunity to set the record straight. There is certainly a fine line when it comes to free speech and social media, but what that line is could well be answered by this Court. Perhaps this case will provide clearer guidance and further the effort to condone anti-Semitism on social media.
Morgan E. Hoyt
Morgan Hoyt attended the University of North Carolina, majoring in Psychology, and Clemson University, earning an MBA. While in law school, Morgan is involved in Carolina Law Ambassadors, the Community Outreach Committee, and Women in Law. Morgan hopes to practice in real estate law and enjoys traveling, reading, visiting breweries, and spending time with her dogs, family, and friends.